Summary:
Insurer filed a motion requesting amendment, clarification, or reconsideration
of the Court's decision, arguing that the Court overlooked or ignored
its prior decision in Osborne
v. Planet Ins., WCC No. 9307-6842, Findings of Fact, Conclusions
of Law and Judgment (August 22, 1994). Specifically, it argues that since
claimant quit his modified job he is ineligible for temporary total disability
benefits and has failed to prove that the modified job is unavailable
or that the medical release for the job has been rescinded.

Held:
Claimant established that the modified job was unavailable as of November
1, 2001. Court is entitled to rely on the employer's initial testimony
regarding the length of modified jobs and is not bound by later testimony
indicating a longer time. The testimony was conflicting testimony and
the Court is entitled to determine which part of the testimony it should
credit. Osborne is not inconsistent with the Court's determination
in this case.

Topics:

Constitutions, Statutes,
Regulations and Rules: Montana Code Annotated: section 39-71-701(4),
MCA (1999). Any construction of section 39-71-701(4), MCA,
which precludes claimant from requalifying for temporary total disability
after a modified position would have ended would amount to penalty and
is contrary to the plain language of the section.

Burden of Proof:
Conflicting Evidence: Generally. Where a witness gives conflicting
testimony, the Court must determine what testimony, if any, is the more
credible.

Cases Discussed:
Osborne v. Planet Ins. Osborne v. Planet Ins.
does not hold that a claimant is disqualified from
receiving temporary total disability benefits where he proves by a preponderance
of the evidence that after he refused or quit modified work the work
became unavailable.

¶1 Respondent (Liberty) moves,
in the alternative, for amendment, clarification, or reconsideration of
the Court's Findings of Fact, Conclusions of Law and Judgment in this
matter. The motions are denied except as to paragraph
31, which erroneously refers to March 2, 2000 - the reference should be
to March 2, 2001.

Discussion

¶2 Liberty argues several grounds
for its motions. Only one is meritorious and is limited to paragraph 31.
That paragraph refers to March 2, 2000. The reference misstates the year,
which should be 2001. The error was a typographical one, therefore paragraph
31 shall be amended accordingly.

¶3 Liberty further argues that
the Court erred when it determined in paragraph 31 that the claimant's
modified job would have ended on November 1, 2000. It urges that the finding
is speculative and not supported by a preponderance of credible evidence.
The argument is without merit. Sam Blaylock (Blaylock), the plant manager,
initially testified that the longest time an injured worker had been kept
on light duty was two to three months but that he would authorize three
to six months light duty. His testimony was as follows:

Okay. And what's the
longest time you've ever had someone be on light duty?

I would say approximately
two to three months.

Okay. So you're not suggesting
to the Court that Kellberg could be on light duty for six months,
a year, two years down the line, are you?

Hopefully not.
But if a doctor suggested or diagnosed someone to be on light duty
for six months or three months, I would do that.

(Tr. at 12-13, emphasis added.)

¶4 Blaylock later testified
that Timberweld might have kept claimant on indefinitely even if he could
only do light or sedentary work. (Tr. at 13-14, 17.) Liberty argues that
this testimony was uncontradicted and therefore has to be accepted as
fact by the Court. Liberty is wrong. "In cases tried to the court without
a jury, it is the duty and function of the court to resolve conflicts
in evidence." Groves v. Clark, 1999 MT 117, ¶ 18, 294 Mont. 417,
982 P.2d 446 (1999). Blaylock contradicted himself. His initial testimony
as to a three to six month limitation of modified duty was the more genuine
and credible. It provided substantial, direct evidence for my finding
that Timberweld would not have retained claimant on modified duty beyond
November 1, 2000.

¶5 Liberty argues that by quitting
his modified job the claimant created a hypothetical, speculative situation
as to what would have happened had claimant continued to work in the modified
job. However, the Court does not decide the issue based on guess or conjecture.
Claimant was required to prove, on a more likely than not basis,
that the modified job would have ended even if he had continued to work.
He satisfied that burden.

¶6 Liberty takes umbrage at
the Court's failure to mention Osborne v. Planet Ins., WCC No.
9307-6842, Findings of Fact, Conclusions of Law and Judgment (August 22,
1994), and reproves the Court for failing to follow that decision. In
Osborne I held:

The clear purpose of section
39-71-7[01] (4), MCA, is to return the worker to employment as soon
as possible. To promote that purpose the legislature made a specific
provision for termination of temporary total disability benefits where
the employer offers the injured worker a modified or alternative job
at full wages and the worker's treating physician approves the worker's
return to work. The statute does not excuse a worker from returning
to work even though the worker believes that he or she is unable to
work. While the worker may refuse to return to work, the consequence
of such refusal is no job and no benefits. The worker who attempts to
return to work and who genuinely cannot perform the job because of his
or her injury can of course seek reevaluation by his or her treating
physician, who may then determine that the worker is not capable of
doing the job and thereby rescind the release.

(Conclusion of Law 2 at 15-16).
My holding in Osborne was and is the starting point in this case.
That was understood at the commencement at trial and has never changed.
My holding in Osborne, however, is not as expansive as Liberty
would like it to be. I did not hold that once a claimant has been released
to a modified job that he may never requalify for temporary total disability
benefits if he refuses or quits the modified position.

¶7 A holding that claimant
who refuses or quits a modified position may not requalify for temporary
total disability benefits even though a preponderance of the evidence
indicates that the job would have ended would amount to a penalty assessed
against the claimant. Section 39-71-701(4), MCA (1999), provides for no
such penalty. It simply provides:

(4) If the treating physician
releases a worker to return to the same, a modified, or an alternative
position that the individual is able and qualified to perform with the
same employer at an equivalent or higher wage than the individual received
at the time of injury, the worker is no longer eligible for temporary
total disability benefits even though the worker has not reached maximum
healing. A worker requalifies for temporary total disability benefits
if the modified or alternative position is no longer available for any
reason to the worker and the worker continues to be temporarily totally
disabled, as defined in 39-71-116.

Moreover, such construction is
contrary to the plain language of the last sentence, which expressly provides
that the claimant shall requalify for benefits when the "modified or alternative
position is no longer available for any reason . . . ." My decision finding
that claimant requalified for TTD benefits on November 1, 2000, because
the modified position was no longer available to him at that time is not
contrary to my holding in Osborne and is consistent with the
plain language of the section.

¶8 I also found in this case
that "at least as of March 2, 200[1], he [claimant] was no longer able
to perform the modified position even if he had been allowed to sit for
significant periods of time." ¶ 31. Liberty correctly points out that
the release for claimant to return to work in a modified position was
never rescinded. The finding, however, is not critical to the resolution
of the case since I found that the modified job would have ended several
months early, on November 1, 2000: The more important finding was that
claimant failed to prove that prior to November 1, 2000, he was physically
unable to perform the modified job. Whether a release must be rescinded
for claimant to requalify for benefits when the modified job continues
to be available need not be answered. Certainly, withdrawing medical approval
for the modified job is preferable. On the other hand, section 39-71-701(4),
MCA (1999), also contains language which states that the claimant must
be "able" to perform the modified job. The use of that word may encompass
consideration of the broader concept of "disability," which is not solely
a medical issue. In any event, I need not consider in this case whether
rescission of a release is required.

¶9 Citing section 39-71-701(2),
MCA (1999), and Onstad v. Payless Shoes, 2000 MT 230, ¶ 65, 301
Mont. 259, 9 P.3rd 38 (Trieweiler, T., dissenting), Liberty also argues,
as a general proposition, that temporary total disability must be supported
by objective medical findings. I am mystified by Liberty's point. There
is ample objective evidence that claimant injured himself on April 11,
2000, and that the symptoms caused by that injury impair his ability to
work and engage in other activities.

ORDER

¶10 Paragraph 31 of the Court's
Findings of Fact, Conclusions of Law and Judgment is amended as follows:

¶31 On a more probable-than-not
basis, I find that the modified job would not be available currently
to claimant and that currently he could not do the job in any event.
The testimony of Timberweld's plant manager convinces me (more than
51%) that the modified job would not have lasted indefinitely. The longest
period of time anyone has worked in light duty is two to three months,
and the manager indicated that the company would have considered extending
modified work up to five to six months. Moreover, claimant's condition
has worsened. His difficulty standing, along with stabbing leg pain,
is medically documented by Dr. Buechsenschuetz as of March 2, 2001.
Together with Dr. Lang's concerns in June 2000, with his ability to
stand for long periods, his increased symptoms, even though not
working, convince me that at least as of March 2, 2001, he was
no longer able to perform the modified position even if he had been
allowed to sit for significant periods of time. On the other hand, claimant's
actual work up to June 12, 2000, without complaint and under extremely
flexible conditions, and his improvement for two to three months following
the June 16, 2000 epidural injection are enough to convince me that
he could have continued working for at least an additional three months.
Putting both factors together, I find that the modified position would
have ended on November 1, 2000, which is about the same time as he first
sought care from Dr. Buechsenschuetz (October 26, 2000).